FEDERAL COURT OF AUSTRALIA

Qantas Airways Limited v Australian Licensed Aircraft Engineers Association [2011] FCA 401

THE COURT ORDERS THAT:

1.    The applicants be granted an extension of time within which to apply for leave to appeal to 15 April 2011.

2.    The applicants be given leave to appeal.

3.    The applicants are to file and serve a Notice of Appeal no later than 18 April 2011.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using Federal Law Search on the Court’s website.

REASONS FOR JUDGMENT

1    On 11 February 2011, Federal Magistrate Raphael made declarations that the first and second applicants, respectively Qantas Airways Limited and Mr Peter Cawthorne, had contravened, in the case of Qantas Airways, s 340(1) of the Fair Work Act 2009 (Cth), and in the case of Mr Cawthorne, s 343(1)(a) of the Fair Work Act. Following amendments made pursuant to the slip rule, amended declarations were made on 16 March 2011 as follows:

(1)    In respect of Qantas Airways Limited, that it had subjected Mr Luke Murray to adverse action by suspending international postings in contravention of section 341, Fair Work Act 2009, Commonwealth; and

(2)    In respect of Mr Peter Cawthorne, that he took action against Mr Luke Murray with intent to coerce him to not exercise a workplace right, in contravention of section 343(1)(a), Fair Work Act 2009, Commonwealth.

His Honour also added that “Proceedings for penalty are to be set down for hearing on a date to be advised”.

2    I understand that a hearing on the penalty issues is presently scheduled for 19 May 2011. Qantas and Mr Cawthorne, henceforth referred to as the applicants, now seek:

(a)    an extension of time within which to seek leave to appeal from the Federal Magistrate’s decision; and

(b)    leave to appeal from the Federal Magistrate’s decision.

3    The applicants require leave to appeal and an extension of time within which to make that application because his Honour’s judgment is interlocutory. Even though the findings and declarations made completely resolve question of liability his Honour has not yet dealt with the question of the appropriate penalty in respect of the contraventions of the Fair Work Act. For that reason, while it is technically interlocutory, in a practical sense the judgment as to contraventions is final. Precise binding declarations as to contraventions of the Fair Work Act have been made in respect of each applicant.

4    The respondent opposes both the extension of time and leave to appeal. At the hearing I suggested that the parties not spend much time on the question of an extension of time. While leave to appeal should have been sought within seven days of the amended declarations being made, the delay is comparatively small and I would not be disposed to refuse the extension of time if otherwise satisfied that leave should be granted.

5    In relation to whether leave to appeal should be granted, there is at least an arguable case that his Honour erred in a number of ways, in particular in making findings on matters that were said not to be pleaded and in respect of which none of the parties was given an opportunity to be heard. Mr Slevin, counsel for the respondent, the Australian Licensed Aircraft Engineers Association, pointed out that as is common in the Federal Magistrates Court there were no pleadings in the strict sense and therefore, of course, there could not be an absence of pleading of a particular point. While Mr Slevin is technically correct the more important point is whether all points of claim that were to be raised against Qantas and Mr Cawthorne were disclosed to them in the pre-trial documents.

6    As I have already said, at least in relation to Mr Cawthorne, there is more than a suggestion that the points which led his Honour to make the declaration against him were not put to Mr Cawthorne and that he was not given an opportunity to be heard on those points. Mr Kenzie, senior counsel for the applicants, addressed me at some length on what he alleged to be the errors of this nature in the Federal Magistrate’s judgment. It is not necessary for me to refer in detail to those arguments. They were sufficient to satisfy me that there is an arguable case to be put on appeal should leave be granted.

7    More problematic was the issue raised by Mr Slevin, who appeared for the respondent, namely that the question of penalties has been scheduled to be heard shortly and that the evidence and submissions for that hearing have all been filed. Consequently, leave to appeal from the interlocutory judgment would interfere with the normal orderly process of resolution of the dispute and had the potential to fragment the appeal process. Moreover, it would not result in any significant savings of costs.

8    If the applicants were to succeed in an appeal there would be no need for a penalty hearing. Undoubtedly, this would result in a saving of time and money, however, were they to be unsuccessful then, not only would there be a penalty hearing but there might well be a further appeal in relation to any penalties determined in the Federal Magistrates Court. It is always a matter of serious concern to adopt a course which might fragment the appellate process. However, in this case, I would not rate that concern highly as the advantages to be gained in resolving an appeal in respect of the declarations as soon as possible. As I have said, it may well be that if the applicants are successful there will be no need for a penalty hearing. If they are unsuccessful, while it is possible there will be an appeal in respect of penalties, it is by no means a foregone conclusion.

9    The declarations of contravention of the Act have implications not only for the parties personally but also more broadly in terms of the correct construction of the Fair Work Act and that has implications that go well beyond the parties in this case. In the circumstances, I find on balance that leave to appeal should be granted and, of course, as a preliminary that the relevant extension of time within which to make the application should also be granted.

10    I will therefore order that:

(1)    The applicants be granted an extension of time within which to apply for leave to appeal to 15 April 2011.

(2)    The applicants are to file and serve a notice of appeal no later than 18 April 2011.

11    In the process of proofing the ex tempore reasons which I gave on 15 April 2011, I have realised that although I concluded that the applicants should be granted leave to appeal, I omitted formally to pronounce an order to that effect. I have rectified that omission by an order made in chambers that the applicants have leave to appeal.

Associate:

Dated:    15 April 2011